Human rights news - June 2012
International Criminal Court: the next chief prosecutor
Rebecca Lowe
Gambian lawyer, Fatou Bensouda, will take over as chief prosecutor of the International Criminal Court (ICC), replacing Argentine Luis Moreno Ocampo in June, after eight years as his deputy.
Bensouda, 51, was the overwhelming favourite for the position among the 120 United Nations (UN) countries that have recognised the jurisdiction of the Court. The final vote took place in December following a year-long search that involved a list of more than 50 candidates.
The ICC was established via the Rome Statute in 2002 to investigate the world’s worst atrocities. It has jurisdiction to investigate war crimes, crimes against humanity, genocide and crimes of aggression, if countries are unable or unwilling to investigate themselves.
The Gambian lawyer received a strong endorsement from the African Union, despite its vocal opposition to Ocampo’s leadership. All seven cases so far have involved African states, prompting criticism of neo-colonialism – compounded by the fact that neither the US nor China has signed up to the Statute. Bensouda, however, has remained unapologetic about the focus on her home continent, pointing out that four of the cases were referred by the countries themselves.
It is hoped that Bensouda will help raise the profile of the ICC, which has been beset with controversy since its founding. Unlike Ocampo, who has come under fire for his eagerness to court the spotlight, his deputy has taken more of a back-seat role. Following a spate of resignations by members of the ICC staff and an array of preventable set-backs to the first trial, which took six years to complete, it is Ocampo who has borne the brunt of the blame, while his African protégé has emerged relatively unscathed.
This is not to say that Bensouda is a wallflower: far from it. A woman of imposing stature and kaleidoscopic wardrobe, she is a calm, commanding presence, exuding easy authority. Having been raised among a large group of siblings by two mothers in a polygamous family in Banjul, The Gambia, it is clear she knows how to fight to get her voice heard.
Indeed, her route to the top has not been an easy one. After beginning her career as The Gambia’s first international maritime law expert, she spent the next 20 years rising up through her country’s legal ranks. In 1998, she was appointed attorney-general and justice secretary of state, before moving to Kigali to work at the International Criminal Tribunal for Rwanda. Finally, in August 2004, she was elected to the ICC by a large majority of votes.
The move, she says, was a challenging one. ‘Once you get here you realise that there are so many things that you are doing for the first time. Here we are investigating ongoing conflict situations, whereas ad hoc tribunals mainly take place after the conflict has ceased.’
Investigating ongoing conflict situations remains a pressing challenge for the Court. Ocampo came in for heavy criticism over his handling of the situation in Darfur, Sudan, which his office began investigating in June 2005. The following year, in a peer review of the Court, Louise Arbour, the UN High Commissioner for Human Rights, challenged Ocampo’s failure to undertake research on the ground, claiming safety concerns had been overstated.
Bensouda defends her boss’s decision. ‘If they are saying that by not going to Sudan we cannot get our evidence, that is wrong,’ she says. ‘The Appeals Chamber has agreed with our evidence, so I think the Office’s work has been totally vindicated.’
But what of the temporary collapse of the Court’s first case? Originally the trial of Thomas Lubanga was due to begin in June 2008, but was halted after the prosecutor failed to disclose material potentially beneficial to the defence. The former Congolese rebel leader came within a whisker of being freed, until a compromise was finally brokered in January 2009.
Bensouda urges people to bear in mind how young the ICC still is, and the significance of what it is trying to achieve. This is also her excuse as to why trials still take so long: only one so far (Lubanga) has reached a conclusion. ‘Things are getting better. We have to be given the benefit of the fact that we had to set up an office, get the good people and start cases.’
On other potential flaws in the system, Bensouda is equally defiant, such as the equality of arms between the prosecution and defence. A recent IBA report outlined concerns about the relative lack of resources of the defence and recommended that ‘serious consideration’ be given to establishing the defence as an organ of the ICC.
Bensouda, however, disagrees. ‘For me, equality of arms does not mean that if you have ten prosecutors, you have ten defence lawyers. What is important is that they have all the facilities they need to make a proper, rigorous defence, and I believe they have that.’
As the Court strives to protect its credibility and prove to the world that it can live up to its original mandate, it is hoped that Bensouda can provide fresh momentum to see it through the next decade. If nothing else, her passion and dedication cannot be doubted. ‘One thing that doesn’t go away at all is my love to help victims, to ensure that justice is done,’ she says. ‘That never goes away.’
This is an edited version of a longer article, which can be read at: tinyurl.com/IBAnews-bensouda.
Task Force on Illicit Financial Flows, Poverty and Human Rights – call for submissions
The IBAHRI’s Task Force, brought together to analyse the links between illicit financial flows – and specifically the proceeds of tax abuse – poverty and human rights, is now seeking submissions from IBA members.
It is vital that the Task Force receives comments and views from as wide a variety of stakeholders and perspectives as possible. Submissions received will supplement the Task Force’s consultation meetings and research. Respondents may be acknowledged in the final report, should they wish to be.
The IBAHRI has compiled a list of six questions related to tax avoidance, equitable taxation systems, poverty and human rights, to gather general attitudes and perspectives from the legal community.
1. Is poverty a violation of human rights under international law?
2. Does taxation have a role in development and the elimination of poverty?
3. Do tax avoidance abusive schemes and tax evasion constitute a violation of human rights?
4. Does the legal profession have a role in and responsibility for preventing tax avoidance?
5. What are the elements of an effective and equitable taxation system by countries seeking foreign investment (ie, host countries)?
6. Should tax havens be abolished or do they play a valuable role in the global economy?
Full details of the questions and information on how to submit your responses can be found at: tinyurl.com/IBAHRITaskForceQuestions
Should you wish to provide the Task Force with an expert opinion and/or to be interviewed by the Task Force Rapporteur, please contact Shirley Pouget, Task Force Facilitator atshirley.pouget@int-bar.org.
Uganda activists sue government over oil production sharing agreements
Sarah Akankwasa
The Ugandan government is in dispute with activists over its failure to disclose the contents of production sharing contracts with oil exploration companies operating in the country.
Uganda has at least five production sharing agreements (PSAs), which include those with UK-based Tullow Oil, Heritage Oil, and Ophir Energy. The country has discovered more than 2.5 billion barrels of oil in the country’s Albertine Graben near the border with the Democratic Republic of Congo.
The reserves could grow to more than six billion barrels when the whole Albertine acreage is explored, according to Uganda’s Ministry of Energy and Mineral Development.
Dickens Kamugisha, chief executive officer of the Kampala-based Africa Institute for Energy Governance, said that a group of civil society organisations, together with human rights body the Centre for Public Interest Law (CEPIL), have taken action in Uganda’s constitutional court. They claim that clauses limiting access to information in the PSAs violate the Constitution of the Republic of Uganda, which guarantees access to information.
It is feared that the PSAs signed in Uganda do not represent the great deal publicly claimed by the government. Government figures indicate that the state will receive between 67.5 per cent and 74.2 per cent of total revenue. However, Credit Suisse analysis of Heritage Oil predicts government take to be lower: between 55 per cent and 67 per cent.
Civil Society Coalition Organisations (CSOs) are demanding that the constitutional court outlaws the confidentiality clauses in the PSAs. Kenneth Kakuru, lawyer for civil society organisation Greenwatch, said: ‘According to our constitution, every citizen is entitled to information within the possession of the state, and it can only be legally withheld where disclosure jeopardizes national security or compromises individual privacy.’
However, in an exclusive interview, Uganda’s junior energy and minerals minister Simon Dujuanga said that the government is bound by confidentiality clauses in the oil pacts, but remains committed to using oil proceeds to fund the country’s development.
Read the full article at: tinyurl.com/IBAnews-ugandaPSA
Human rights and parliamentarians in Uganda
In May the IBAHRI participated in a two-day regional conference convened by The Westminster Consortium (TWC) in Kampala, Uganda. The two-day conference entitled Parliament and Human Rights: Strengthening the Tripartite Mandate of Parliament, was attended by MPs and parliamentary staff from national parliaments across the region and aimed to strengthen their capacity to scrutinise and oversee human rights related legislation. Participants also discussed strategies, achievements, challenges and opportunities for national parliaments in fostering human rights. The conference follows the launch of the IBAHRI/TWC handbook on human rights and parliamentary strengthening at the East Africa Legislative Assembly in May 2011.
Human rights experts surprised by ECHR terrorism verdict
Rebecca Lowe
Leading lawyers have voiced mixed feelings over the European Court of Human Rights (ECHR) judgment that five Islamic extremists can be extradited to the US to stand trial on terrorism charges.
The Strasbourg court ruled on 10 April that British nationals Abu Hamza, Babar Ahmad, Syed Talha Ahsan, Adel Abdul Bary and Khaled al-Fawwaz could serve life sentences without parole at an American ‘supermax’ prison without suffering a violation of their human rights. The judges decided they needed more information about the mental health of sixth suspect Haroon Aswat before reaching a decision.
Between them, the applicants have been charged with an array of terrorist crimes, including providing support to terrorist organisations, taking hostages, and conspiracy to kill American nationals. Fawwaz was charged with 269 counts of murder.~
‘I was a little surprised by the verdict as I tend to feel that if locking someone up in solitary confinement for the rest of their life is not cruel and unusual punishment, or near it, then what is?’ said Geoffrey Bindman, founding partner of civil liberties law firm Bindmans. ‘There should always be the possibility of release.’
The applicants argued that being subjected to solitary confinement and life without parole at ADX Florence, where they would almost certainly be sent if convicted, would violate Article 3 of the European Convention of Human Rights, which prohibits torture and inhuman or degrading treatment.
Though life without parole is not banned by the Convention, there has been an increasing trend in Europe against it. Now only the Netherlands, England and Wales impose the sentence.
The ECHR determined that the sentences did not violate Article 3 because they were not ‘grossly disproportionate’ to the alleged crimes and they were not de facto irreducible because there were opportunities for early release – albeit remote ones. These included a pardon by president, a change in sentencing guidelines and a motion by the Director of the Bureau of Prisons.
Mark Drumbl, Director of the Washington and Lee University’s Transnational Law Institute and a member of the IBA War Crimes Committee advisory board, described the judgment as ‘well within the mainstream of international human rights law’. However, politics may have played a part in the decision, he said.
‘The fact that the suspects were accused of terrorist crimes that targeted westerners, as opposed to, say, genocide against Rwandans, undoubtedly colours the approach of the judiciary. It is easier to be liberal in interpreting human rights when the victim populations that seek justice and need to absorb threats are far away.’
Read the full article at: tinyurl.com/IBAnews-ECHR.
Second round of human rights training for judges in Tunisia
In May 2012, the IBAHRI conducted the second round of judicial human rights training in Tunisia. The training is part of a project, organised in partnership with the International Legal Assistance Consortium (ILAC) and the CEELI Institute, which aims to train the majority of Tunisian judges on human rights and judging in a democratic society over the next few months.
Training is based on the Arabic version of the IBA/UN leading training manual ‘Human Rights in the Administration of Justice’. The second training was delivered by a team of international facilitators, composed of: Justice Ivana Hrdlièkovà, Appellate Court of Czech Republic; Matthias Kelly, QC, 39 Essex Street Chambers, London; and Ben Cooper, Doughty Street Chambers, London.